Daily Comment on News and Issues of Interest to Michigan Lawyers

July 2013

07/31/2013

The Hon. Wendell A. Miles, of Grand Rapids, died July 30 at the age of 97. A 1942 graduate of the University of Michigan Law School, Judge Miles served as Ottawa County prosecuting attorney before being appointed U.S. Attorney for the Western District of Michigan by President Eisenhower. He was an Ottawa County circuit judge for 14 years before his nomination to the federal district court, Western District, by President Nixon. While serving on the federal bench, he was appointed by Chief Justice Rehnquist to the Foreign Intelligence Surveillance Court
shortly after its founding. He also served as chief judge of the Western District federal court from 1980 to 1986. He retired from the bench in 2008. The United States District Court is planning a memorial service in Judge Miles' honor.

You might want to make sure some of your clients are aware of this. From the Windsor Star's "Drunk man swims across Detroit River," comes the odd-but-obvious news that a recreational swim across the international border would be a problem even without the international-border complication. Says the man who swam from Hiram Walker to the Ren Cen:

I never should have done it. I’ve been telling people I could swim
across the river for 20 years and they all laughed at me, and I finally
did it. But I would not suggest anybody do it. There are giant fines for
doing it, crossing the shipping lanes. It’s just really stupid and I
apologize for all the people that had to go out looking for me.

07/30/2013

A decision released Tuesday by the 6th Circuit ends the lawsuit brought by several Cooley Law School grads alleging pre-enrollment misrepresentation about their employment prospects. The 6th Circuit affirmed a federal district court opinion dismissing the suit but raising reservations about the value of a law school education. The plaintiffs' attorney was undaunted by the dismissal, declaring a victory of sorts, as reported by Reuters:

Jesse Strauss of Strauss Law had two goals
when he filed a fraud suit on behalf of 12 graduates of Thomas M.
Cooley Law School. The first was to win compensation for the Cooley
grads, who had paid tens of thousands of dollars of tuition in the
misguided expectation that a Cooley law degree would lead to a full-time
legal career. The second, he told me, was to dispel similar misguided
expectations by anyone else considering enrollment at Cooley. A ruling Tuesday
by the 6th Circuit Court of Appeals will probably spell the end of the
hope that Cooley graduates can get any of their money back from the
school, but it should also expose the law school as a highly
questionable investment for prospective lawyers.

“Based on my clients’ reactions, everyone is proud of their involvement in this suit,” Strauss said. “We’ve done real justice.”

James Thelen, Cooley's General Counsel, countered Strauss, telling Reuters that Cooley's mission is to make law school accessible to people who want to
become lawyers but might not meet the standards of more selective
institutions. He called the 6th Circuit’s
description of the “dismal” prospects of Cooley graduates not a legal
finding but a statement based on the unproven allegations from the plaintiffs’
complaint. Thelen also said that the problem of law school debt load is one that all law schools must confront, and suggested that one solution might be for the ABA to
create a tiered system of accreditation.

Remember how you used to rant about the bar exam while studying for it? If you're a baby boomer, I bet you think no one can outdo your inner or outer monologues about the exam for up-yours anti-authoritarianism. Unless you're offended by profanity, try this from a recent studier for a taste of the new-style rant. Here's one of the tamer passages:

There’s nothing I hate – well, aside from that horrible time I had to do
BARBRI Amps and got 0%- more than looking up answers and seeing ‘C is
technically correct, but D is a better answer.’ WHY. Would it be THAT
hard for you to have three wrong answer choices? What makes D better?
Does it volunteer at a soup kitchen on weekends? I DON’T CARE. I should
get credit for picking C if it’s correct. End of. FIX IT. You’re
negligently causing me emotional distress. Actually, intentionally. THIS
EXCEEDS THE BOUNDS OF WHAT WOULD BE ALLOWED IN A CIVILIZED SOCIETY.
You’re lucky I even picked anything. There are those times I start
crossing off answers and I get rid of A, B, C, AND D and cry quietly.

In this, my last death penalty case as a judge on the Sixth Circuit, I
must concur in affirming the judgment of the district court. Despite my
concurrence, I continue to condemn the use of the death penalty as an
arbitrary, biased, and broken criminal justice tool. The facts of this
case make it one of the more tragic and disturbing cases that I have
heard in years. While Nichols’ actions are despicable, I cannot ignore
the fact that his actions were committed in the late 1980s and that he
was convicted in 1990. Nichols’ execution was supposed to take place in
1994. I have been on this bench since 1979, and for twenty-three of my
thirty-four years as a judge on this Court this case has been moving
through our justice system, consuming countless judicial hours, money,
legal resources, and providing no closure for the families of the
victims. Retired Supreme Court Justice John Paul Stevens has called for a
dispassionate and impartial comparison of the enormous cost that death
penalty litigation imposes on society with the benefits it produces. The
time, money, and energy spent trying to secure the death of this
defendant would have been better spent improving this country’s
mental-health and educational institutions, which may help prevent
crimes such as the ones we are presented with today.

A post at Volokh Conspiracy on Boyce's concurrence kicks off a lively comment thread, starting with "Simple solution (I would like to know what folks think)--change the
burden of proof to "beyond all doubt" in the sentencing phase. If the
jury cannot agree to convict him by that quantum of evidence, he gets
LWOP or some other option."

07/27/2013

Matthew Leitman, principal at Miller
Canfield in Troy. J.D. magna cum laude, Harvard Law
School (1993), B.A. with highest distinction, University
of Michigan (1990). Leitman clerked for Justice Charles L. Levin on the Michigan Supreme Court from 1993 to 1994. His practice includes complex commercial litigation, criminal defense, and appellate matters before both state and federal courts.

Judith Levy, Assistant United States Attorney in
the Eastern District of Michigan. J.D. cum laude, University of Michigan Law
School (1996), B.S., University of Michigan (1980). Levy clerked for the Honorable Bernard
A. Friedman on the United States District Court for the Eastern District
of Michigan from 1996 to 1999. Between college and law school, Levy worked at the University of
Michigan Hospital and served as the bargaining chairperson for the
American Federation of State, County and Municipal Employees for six
years.

Laurie Michelson, Magistrate Judge in the
Eastern District of Michigan. J.D. in 1992 from Northwestern University School of Law (1992), A.B., University of Michigan (1989). Michelson clerked for Judge Cornelia G. Kennedy on the United States Court of Appeals for the Sixth Circuit in 1992-1993. While in private practice, she specialized in media law, intellectual property, and white collar criminal defense.

Linda Parker, Wayne County circuit court judge, J.D., George Washington University Law School(1983), B.A., University of Michigan (1980). Parker worked as a a law clerk in the District of Columbia Superior
Court from 1983 to 1985, and as a staff attorney at the United States Environmental Protection Agency from
1985 to 1989. She was the Director of the Michigan Department of Civil Rights from 2003 to 2008 before being appointed to the bench.

Michigan’s constitution, Article 9, section 24, is crystal clear in
stating that pension obligations may not be diminished or impaired. As attorney general, I will defend the rights of
Michigan citizens and defend the Constitution of the State of Michigan.

Detroit's $20 billion indebtedness is simply staggering.
Equally staggering is the financial uncertainty of pension benefits
relied upon by Michigan seniors living on fixed incomes and anticipating
a safe and secure retirement after a lifetime of work. Retirees may
face a potential financial crisis not of their own making, possibly a
result of pension fund mismanagement.

The Free Press notes that the Governor is on record as on the other side of this issue. The Attorney General said that he will continue to represent the Governor and
state departments as part of the bankruptcy case, but that his office
also represents the people of the state of Michigan to protect
pensioners and the Michigan Constitution.

Earlier this week Reuters had a story on the legal work generated by the Detroit bankruptcy filing, focusing on the large non-Michigan-based law firms that are beginning to descend on the federal court. As we reported here, the (arguably condescending) Reuters story also said although large
corporate creditors are likely to stick with their out-of-state law firms,
smaller creditors may choose Michigan firms. Today we bring you actual evidence for that proposition. Here's the court docket, which shows Michigan firms are decidedly in the mix, including Bodman, Dickinson Wright, Foster Swift, Honigman, Jaffe Raitt, Miller Canfield, and Warner Norcross.

The New York Times
editorial board has come to a conclusion about whether the treasures of
the Detroit Institute of Art should be sold as part of the bankruptcy:
don't do it. "Selling the people’s art will not restore a battered
city. It will only send more of its true assets elsewhere." New York
itself came close to bankruptcy in the seventies so the Gray Lady has probably given this a lot of thought.

As cheering as the NYT's conclusion might be to Michigan's art lovers and to Attorney General Bill Schuette, who is on record as opposing using the DIA's art collection to satisfy the Detroit's debts, the New York Times editorial is not nearly as satisfying the change of heart by the New Yorker's art critic,
Peter Schjeldahl. Schjeldahl had endorsed the sale of the art in an earlier post, but yesterday wrote an apology:

I wrote in reaction to this quote in the Times,
from a spokesman for the state-appointed emergency manager Kevyn D.
Orr: “It’s hard to go to a pensioner on a fixed income and say, ‘We’re
going to cut 20 percent of your income or 30 percent or whatever the
number is, but art is eternal.’ ”

First, the facts: I am now persuaded that a sale of the D.I.A.’s art,
besides making merely a dent in Detroit’s debt, could not conceivably
bring dollar-for-dollar relief to the city’s pensioners. Further, the
value of the works would stagger even today’s inflated market.
Certainly, no museum could afford them. They would pass into private
hands at relatively fire-sale prices.

Second, a heartfelt feeling tripped me into being heartless. A friend
writes to me—“perhaps sentimentally,” but with justice—“I can’t help but
feel the anger of the grandmother, the artist, the Detroit teenager
just discovering art—the regular or semi-regular museum-goer who has
four or five favorite paintings and is on the cusp of discovering more,
who lives in Detroit (by choice or not) and now must watch them sell
those three or four works off, and everything else.”

Art: Watson and the Shark, 1777, John Singleton Copley, Detroit Institute of Art

07/25/2013

In an entertaining critique of a New Republic cover story, described here, about the impact of the Great Recession on BIg Law exemplar Mayer Brown, Mark Obbie at Slate calls the dire prognosis of Big Law's future "grossly exaggerated":

From the cover lines and title (“Big Law in Free Fall,” “The Last Days
of Big Law”) to an outlandishly flimsy nut graf (claiming just one in 10
top firms will survive the imminent apocalypse, or so says “one common
hypothesis” that then never gets explained or examined), the story looks
at one sore throat and proclaims it a cancer pandemic. Its prognosis on
the death of the mid-sized full-service firm echoes a forecast made so
many times it has lost all credibility. Then the piece takes yet another
giant step into journalism hell by shooting readers through a time warp
that conveniently skips the past 30 or so years of Big Law business
history. Big Law has been declared dying for decades. Pieces touting the
death of Big Law have been written for decades. Unfortunately, “Big Law
Still Really, Really Dying,” while arguable (except where it’s still
really, really profitable), doesn’t sell copy.